1989 PLP 3797 (MLD)

The plaintiff/respondent Mirza Arif Hussain Qazilbash filed counter -affidavit in which he stated that he and his other brothers are in physical possession of the property in dispute for over 12 years according to the sketch prepared in hand. That he has filed the suit for partition of his share which was within the jurisdiction of the Court. That he was not bound by any suit alleged to have been filed previously by defendants Nos. 3, 5 and 7 as he was not a party to the suit. Even otherwise the relief claimed by him and cause of action was different, and therefore, the previous suit cannot operate as a bar against him. The allegations of defendant No.7 with regard to ownership and title of the property are not admitted. The alleged transfer, if any, made by any co-sharer cannot bind the other co-owners nor any one co-owner can transfer or give away the property in excess of his share. If any such thing has been done it was void ab initio and not binding upon him. That the defendant No.7 has deliberately avoided to file the deed of gift to enable the Court to ascertain its legality. The defendant acquired no title on the basis of any such document, nor could he acquire any legal right over the property of the plaintiff if it was conveyed by a third person. That any mutation or entry of name of applicant in the record of rights could not take away his vested legal right and title. The defendant No.7 had no right to sell or dispose of his share in the property. That he used to pay the gas bills, while telephone bills were paid by Asif Qazilbash. After hearing the learned counsel for the parties, the learned trial Judge was pleased to dismiss the application as mentioned above. The present revision application is directed against the above order. I have heard the learned counsel for the applicant, learned counsel appearing for the respondents, and have gone through the R & P of the case. It was contended by the learned counsel for the applicant that the plot/premise in question was allotted to respondent No.6, and the lease deed was executed in his favour by the Society. That on 21-1-1979 respondent No.6 gifted the above plot to the applicant, and the name of the applicant was mutated in the record accordingly. That the applicant is in possession of the premises in dispute since 1978-79 as owner. That the respondent No.4 had filed a suit against the applicant and respondent No.6 being Suit No.917/77 in respect of the same plot in which the plaint was returned to the plaintiff under Order 7, rule 10, C.P.C. That the value of the property in question was Rs.4,50,000. as assessed by the City Deputy Collector, and therefore, tie court-fee had to be paid on the value of the plot as envisaged by the section 7(4) (c-A) of the Court Fees Act. It was further contended that in fact the relief claimed by the plaintiff was for cancellation of gift, and unless the relief of declaration was granted, the relief of partition could not be granted, and therefore, the court-fee had to be paid on the value of the property. In support of his contention the learned counsel has relied upon AIR 1937 Sind page 241 and P.L.D. 1964 SC page

329. It was further contended that the learned trial Court had misread the prayer as it was not a suit for partition only, and thus had exercised jurisdiction not vested in it. In support of the above contention reliance was placed on P.L.D.1971 Kar. page 682 and PLD 1968 SC page

54. It was contended by the learned counsel for the respondents that the applicant had produced certain documents which were not produced before the Lower Court and, therefore, the same could not be taken into consideration. That the property in question did not belong to the respondent No.6, but it was the property of Mst. Intizari Begum, and therefore, he had no right to execute gift in favour of the applicant. In this connection he has relied upon a will produced as Annexure "A" which according to him was signed, by applicant Fayaz Hussain as well. That all the heirs including the applicant except the plaintiff had agreed to sell the premises in question, and had executed an agreement in December, 1976, in favour of applicant, but it did not materialise due to non-compliance of terms by applicant. That when there was publication in Newspaper `JANG' about sale by applicant, the present suit was filed. That the pi ice fixed in the agreement was Rs.1,50,000, and the document shows that the applicant had paid Rs.50,000 as advance. That the plaintiff has been residing in the same house and he has' raised further construction. That the plaintiff had 1/28th share in the property, and the value of the property has been fixed by him at Rs.5 lacs according to which his share comes to Rs.17,000 on which he has paid court-fee stamp. That the suit was not based on gift, and the prayer is in negation of gift, and therefore, section 7(iv)(a) of the Court Fees Act does not apply but section 7(iv) (c) will be applicable. In support of his-content on the learned counsel has relied upon PLD 1961 SC page 349 and 1979 CLC page

867. I have considered the contentions of the learned counsel and have gone through the documents produced by ' he parties and the decisions cited at the bar. In the present revision application the limited question to be decided by ibis Court is with regard to the value of the suit for the purpose of jurisdiction of we Court, as other questions raised by the applicant are the subject-matter of an application filed by him under Order 7, Rule 11, C.P.C. before the learned trial Judge which is still sub judice. Section 8 of Suits Valuation Act, 1887, determines the valuation for the purpose of jurisdiction, which reads as under: "

8. Court-fee value and jurisdictional value to be the same in certain suits.--Where in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and paragraphs (x), clause (d), court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same." According to the applicant, the oral gift is said to have been made on 1-2-1978 and the possession of the premises in question was delivered on the same day. The declaration of gift was made in writing and attested on 6-10-1978. The parties have also produced Agreement of Sale dated 10-12-1976 which is said to have been executed by Mirza Sikandar Kizilbash, Miraz Ishrat Hussain, Mirza Tahir Hussain, Mirza Mahmood Hussain through his attorney Mirza Sikandar Hussain, Mirza Fayyaz Hussain, and Mirza Yasin Hussain in favour of Mirza Hassan Askari Kizilbash the present applicant. This agreement shows that the vendors had agreed to sell the above premises to applicant Hassan Askari in the sum of Rs.1,50,000 and they had received a sum of Rs.50,000 as earnest money. There is yet a third document described as a will alleged to have been executed by one Mst. Intizari Begum ancestor of the parties on 2-8-1969. So far the agreement of sale is concerned, it appears to have been signed by the applicant as well as by respondent No.6 and others except respondent No.1. So far the will alleged to have been executed by Mst. Intizari Begum was concerned, it appears to have been signed by respondent No.6 Mirza Fayyaz Hussain. In view of the above three conflicting documents, it cannot be said at this stage that respondent No.6 was the sole owner of the premises in question it being a question of fact can only be decided by the trial -Court after recording necessary evidence of the parties. In this application only a limited question regarding jurisdiction of the trial Court has to be decided for which the relief clamed and the allegations made in the plaint are to be read as a whole. The plaint shows that the plaintiff/respondent No.l was not a party to the execution of sale agreement or gift. The will, which is alleged to have been executed by Mst. Intzari Begum ancestor of the parties shows that the plaintiff had 1/28th share in the property. This will has been signed by respondent No.6. On a question put by the Court to the learned counsel appearing for the applicant, it was admitted by Mr. S.H. Kizilbash, learned Advocate that the plaintiff was residing alongwith his mother, sisters and brothers in the house in question, but according to him, he was not in possession in his own right. It is the case of the applicant that the value of the premises in question was assessed at Rs.4,50,

000. It is also an admitted position that the plaintiff/respondent No.l was not a party to the gift made by respondent No.6 in favour of the applicant. In the case of Hameeda Begum v. Mst. Begum and others (P L D 1975 S C 624), it was observed by their Lordships of the Supreme Court, while considering the effect of section 39 of the Specific Relief Act and Article 91 of Limitation Act, "It is correct that the Article does not apply where the plaintiff was not a party to the instrument sought to be avoided, for the reason that in that case he is not bound by it and it is not necessary for him to have it set aside". As far as the decisions in the cases of Lakhomal Deepchand and another v. Deepchand Tolaram and others (AIR 1937 Sind 241); and Muhammad Akbar Shah v. Mohammad Yousuf Shah and others (PLD 1964 SC 329) relied upon by Mr. S.H.Kizilbash are concerned, in the first case, suit was filed for declaration and injunction, and it was observed that since the suit was for consequential relief, it was not open to the plaintiff to put any arbitratory value upon the injunction sought and pay court-fee on such value. In the Supreme Court case the validity of a will was in question and it was observed that relief of possession cannot be granted unless the plaintiff succeeds in getting a decree setting aside the will, as voidable transactions required to be set aside as a preliminary stage. It was further observed that void transactions do not need to be set aside. In the third case Dawood Khan v. Aurangzeb and others (PLD 1968 SC 54), the only question regarding retractibility of gift, which was made in favour of a relation within prohibited degrees was involved, and no question regarding jurisdiction of the Court was involved, and therefore, which utmost respect it is not applicable to the facts of the present case. As far as the fourth case, Badrul Islam v. Qamrul Islam and 4 others (PLD 1971 Kar. 682) relied upon by the learned counsel for the applicant, was concerned, it was a suit for rendition of accounts of Waqf property and for mandatory injunction directing "Mutawalli" to perform his duty, and it was observed by his Lordship that the value of the property being Rs.67,000, the valuation put by the plaintiff for injunction and accounts at Rs.200 was arbitrary, and therefore, the plaint was ordered to be returned to him for presentation before the proper Court. There is no cavil with the proposition laid down in the above decisions relied upon by the learned counsel appearing for the applicant. However, the question involved in the present case was with regard to the valuation put by the plaintiff for the purpose of jurisdiction of the trial Court. It is the case of the plaintiff/respondent No.1 that he is in joint possession of the premises in dispute with the applicant and others, and this position has been admitted by the applicant, of course with some reservation. Even respondents Nos. 8 and 9 have admitted in paragraph 8 of their counter-affidavits that the plaintiff is residing in the premises in question, but temporarily. It is the case of the plaintiff that he was not a party to the execution of gift deed in favour of the applicant, and it has been further alleged that the respondent No.6 had no right to gift away share of the plaintiff to the applicant. In view of the above situation, prima facie it is a case for declaration, partition and injunction. In view of the fact that the plaintiff was not a party to the gift and that he is admittedly in possession of portion of the house in question, it was not necessary for him to seek relief of the cancellation of gift. The learned counsel for respondent No.1 has relied upon the following cases:-- (i) Mohammad Sharif and another v. Mst. Azra Perveen and another (1979 CLC page 867 in which it was held, "The suit, no doubt involves validity of an alleged gift. But even if it is treated to be a suit based on denial of gift, it would not fall under clause (IV-A) of section 7, which include only those suits, which are based on gift and not based on denial of gift, as the suit is not based on gift, but it is based upon inheritance only or upon the negation of the gift". (ii) In the case of Ajeeruddin Mondal and another v. Rehman Fakir (PLD 1961 SC page 349) it was observed by their Lordships of the Supreme Court that: "In a suit for partition of joint property by a person claiming to be in joint possession the value of the plaintiffs share determined the valuation for the purposes of jurisdiction." In the present suit, it is the case of the plaintiff/respondent No.l that he had 1/28th share in the premises in suit, and after assessing the value of the C entire premises at Rs.5,00,000 (Rs.5 lacs) the value of his share comes to Rs.17,

857. So far the value of the premises in question was concerned, even the assessment made by the City Deputy Collector as admitted by the applicant was Rs.4,50,

000. In view of the above factual as well as legal position, I am of the considered view that prima facia the value of the suit put forth by the plaintiff/respondent No.1 for the purposes of jurisdiction of the Court cannot be D said to be arbitrary, therefore, the order passed by the learned Senior Civil Judge does not call for interference, and the Civil Revision is, therefore, dismissed with costs. M.Y.H./H-150/K Petition dismissed.